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Fairness - Human Right Code. Jagadeesh v. Canadian Imperial Bank of Commerce ['compound discrimination']
In Jagadeesh v. Canadian Imperial Bank of Commerce (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal from a JR of a Canadian Human Rights Commission's dismissal of the appellant's complaint.
The court considers procedural fairness, here on a complainant's argument that the Commission and it's investigation failed to consider their 'compound discrimination' - both disability and sexual orientation:iv. The Failure to Consider Compound Discrimination
[75] Mr. Jagadeesh also says that the Commission treated him unfairly, as its investigation was insufficiently thorough in a number of respects. In particular, he says that both the investigator and the Commissioners failed to consider the compounding effect that the multiple grounds of discrimination asserted in his complaint had for the treatment he encountered at the Bank.
[76] Citing this Court’s decision in Turner v. Canada (Attorney General), 2012 FCA 159, Mr. Jagadeesh states that the Commission erred by analyzing whether there was discrimination on the basis of his disability and on the basis of his sexual orientation separately, without considering what was in fact compound discrimination.
[77] When we asked Mr. Jagadeesh whether he had raised the issue of compound discrimination before the Commission, he pointed to one paragraph in his post-investigation submissions that states "“[s]ections of [the] CHRA [that] apply to my case: 7, 10, and 14. (Discrimination based on: disability, sexual orientation, the combination of both, & harassment – including sexual harassment) …”" [emphasis added].
[78] Mr. Jagadeesh also pointed to section 3.1 of the CHRA, which states "“[f]or greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds”" [my emphasis].
[79] In my view, this was not sufficient to put the issue of compound discrimination in play before the Commission.
[80] As this Court observed in Turner, the concept of intersecting grounds of discrimination (also known as compound discrimination) is based on the recognition that where multiple grounds of discrimination are present, their combined effect may be more than the sum of their individual effects. It recognizes that analyzing multiple grounds separately − as if they existed in discrete silos – can sometimes ignore the compounding effect that intersecting grounds can have.
[81] In other words, there are cases where a finding of discrimination may not be justified when each ground of discrimination is considered by itself, but where a picture of discrimination may emerge when the grounds are considered together: Turner, above at para. 48; Djubok v. Canada (Minister of Citizenship and Immigration), 2014 FC 497, at para.18.
[82] In Turner, the issue of the compounding effect of the multiple grounds of discrimination asserted was squarely raised by the complainant and was argued before the Tribunal. However, the issue was not addressed in the Tribunal’s decision, which resulted in the decision being set aside.
[83] In contrast, Mr. Jagadeesh’s human rights complaint makes no mention of any compounding effect arising out of the grounds of discrimination asserted in his case, nor does the issue appear to have been raised in the course of the Commission investigation. The brief reference to "“disability, sexual orientation, the combination of both”" in his post-investigation submissions was insufficient to trigger any duty on the Commission to pursue the issue of compound discrimination.
[84] Nor does the existence of section 3.1 in the CHRA assist Mr. Jagadeesh. It simply recognizes that discriminatory practices include those based on one or more prohibited grounds of discrimination, as well as those arising out of the combined effect of multiple prohibited grounds. It says nothing about the potential existence of compound discrimination in Mr. Jagadeesh’s case.
[85] Mr. Jagadeesh has also not explained how the two grounds of discrimination identified in his human rights complaint intersected to result in compound discrimination in his case.
[86] Consequently, Mr. Jagadeesh has not persuaded me that the Commission and/or the Federal Court erred in failing to consider the potential existence of compound discrimination in this case. . Young v. College of Nurses of Ontario
In Young v. College of Nurses of Ontario (Div Court, 2022) the Divisional Court allowed judicial review when a tribunal failed to consider the applicant's human rights disability submissions in their reasons [it wasn't couched as a 'fairness' issue, more an 'inadequate reasons' issue]:Was the Decision Pertaining to Ms. Young Unreasonable Because the ICRC Failed to Address Her Submissions Regarding the Ontario Human Rights Code?
[33] For similar reasons, I find that the ICRC’s Decision relating to Ms. Young is unreasonable because the panel of the ICRC did not address Ms. Young’s submissions based on the Human Rights Code.
[34] In her submissions to the ICRC, Ms. Young detailed how her practice at the time of the incidents had been directly and adversely impacted by her mental health disability. Ms. Young submitted medical documentation for the ICRC’s consideration. Ms. Young argued that the Human Rights Code applies to all self-governing professions and in determining the appropriate disposition. She submitted that the circumstances weighed in favour of the ICRC taking no further action.
[35] The Respondent’s position is that Ms. Young’s submissions based on the Human Rights Code were in essence a substantive defence to the allegations of misconduct. The Respondent submits that while the Discipline Committee could consider the legal issue of whether Ms. Young’s mental health disability would exculpate her from a finding of misconduct, the ICRC has no such mandate. The Respondent further submits that applying the Human Rights Code would require that the ICRC make factual findings that Ms. Young suffered from a mental health disability at the time of the incidents and that the disability impacted her work performance such that it excused breaches of her professional obligations.
[36] In addition to the delay and abuse of process issues, Ms. Young’s disability was a central issue raised in her submissions. It is unclear from the reasons whether the ICRC considered Ms. Young’s disability or her submission regarding the Human Rights Code. The reasons refer opaquely to “systemic issues”[1] that might have impacted Ms. Young’s care of patients, but state that she remained “accountable for [her] actions which fell below the standard of care.” What is clear from the reasons is that the ICRC made no mention of the Human Rights Code and failed to “meaningfully grapple” with Ms. Young’s submissions regarding the impact of her disability on the incidents at issue or the appropriate disposition.
[37] The Human Rights Code is quasi-constitutional legislation and is relevant statutory law that acts as a constraint on how and what an administrative decision-maker can lawfully decide: Vavilov, at para. 106. In S.M. v. R.K.A.E., 2011 CanlII 37931 (ON HPARB), the Board found a decision of the ICRC unreasonable because it failed to analyze the complainant’s allegation of discrimination under the Human Rights Code. Although the Board referred to a policy regarding physicians and the Human Rights Code, it was not clear from the reasons how the policy was applied or that the allegation of discrimination was addressed.
[38] Moreover, in College of Nurses v. Trozzi, 2011 ONSC 4614, at 32, this court held that the College’s Registration Committee was required to apply the Human Rights Code when placing terms, conditions and limitations on a nurse’s certificate of registration. I recognize that the mandate and function of the Registration Committee differs significantly from that of the ICRC. However, I have difficulty with the proposition that the ICRC cannot, by virtue of its limited screening function, consider or apply the Human Rights Code. Leaving aside the question of whether the ICRC could consider Ms. Young’s disability as a substantive defence to the allegations of misconduct, I find that once Ms. Young raised her mental health disability in relation to a matter within the ICRC’s mandate, that is, whether some type of remedial action was required, it was incumbent on the ICRC to consider it.
[39] The decision pertaining to Ms. Young is unreasonable because the ICRC failed to apply and consider and address Ms. Young’s submissions based on her disability and the Human Rights Code. . Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa
In Koda Holdings Inc. c/o Domus Inc. v. Gareth D’Costa, David Evans, Griffin Rush, Hugh Kelly, Cameron Hanson and Shane Bulwa (Div Ct, 2022) the Divisional Court makes the important point that procedural fairness includes consideration of the party's human rights under the HRC:[25] In Baker v. Canada (Minister of Citizenship and Immigration),6F[7] the Supreme Court of Canada at paragraph 87 confirmed that the duty of procedural fairness may apply in a variety of circumstances, but that the content of the duty is not uniform. In determining the content of the duty of procedural fairness, the Court held:Although the duty of procedural fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected… the purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair an open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision maker. [26] The duty of procedural fairness includes an obligation to accommodate under the Human Rights Code. That accommodation “must accord the tenant full and fair participation in the process to the point of undue hardship”.7F[8]
[27] Accommodation under the Code is a collaborative process, requiring both the Board and the individual requiring accommodation to cooperate to facilitate a search for accommodation.8F[9]
[28] The Board sets out in its Rules of Practice (“Rules”) and Interpretation Guidelines the process to be followed where a party seeks an accommodation. Generally, it requires that notice be given as soon as possible to Board staff and that the parties work collaboratively.
[29] Further Interpretation Guideline 17 states:If, on the day of the hearing, a party believes that they do not have an adequate opportunity to participate in the proceeding and require accommodation, they should bring their concerns to the attention of the presiding Member as soon as possible during the hearing. Depending upon the circumstances, the Member may require the party to provide sufficient evidence to establish that they are covered under section 1 of the Code and need accommodation. The Member must be respectful of the party’s privacy interests and should not require the party to disclose more information than is needed to make the necessary determination respecting the issue of accommodation.
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